The NSA Is Doing What King George Did to Colonial Americans

Georgetown professor of constitutional law wrote yesterday in the Wall Street Journal:

With the NSA’s surveillance program, the Foreign Intelligence Surveillance Court has apparently secretly approved the blanket seizure of data on every American so this “metadata” can later provide the probable cause for a particular search. Such indiscriminate data seizures are the epitome of “unreasonable,” akin to the “general warrants” issued by the Crown to authorize searches of Colonial Americans.

David Snyder provides a must-read historical summary at the Electronic Frontier Foundation:

The government’s ongoing violation of fundamental civil liberties would have been very familiar to the men who gathered in 1791 to adopt the Bill of Rights. The Founding Fathers battled an 18th century version of the wholesale surveillance that the government is accused of doing today – an expansive abuse of power by King George II and III that invaded the colonists’ communications privacy.

Using “writs of assistance” [another name for "general warrants"] the King authorized his agents to carry out wide-ranging searches of anyone, anywhere, and anytime regardless of whether they were suspected of a crime. These “hated writs”spurred colonists toward revolution and directly motivated James Madison’s crafting of the Fourth Amendment.

[The U.S. Supreme Court noted in Stanford v. Texas: “Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.” And the Supreme Court said in Marcus v. Search Warrant of Property: “The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.”]

We’ve now come full circle. The president has essentially updated this page from King George’s playbook, engaging in dragnet surveillance of millions of Americans, regardless of whether they are suspected of a crime.

***

WRITS OF ASSISTANCE

Writs of assistance gave the King’s men – customs officials generally, but not exclusively – carte blanche to search the homes, papers and belongings of anyone. They permitted officials to “enter and go into any House, Warehouse, Shop, Cellar or other Place” to seize contraband goods.Though similar in a very broad sense to search warrants, they bore little resemblance to the modern document. [Neither do the modern spying authorizations by the Fisa court.] They required no judicial oversight or probable cause – the evidence investigators must show before a judge will issue a warrant.

***

Two events in 1760 led to the writs playing a starring role in the prologue to the American Revolution ….

THE PAXTON CASE

After the king’s death on October 25, 1760, Charles Paxton, the chief customs official in Boston, petitioned for new writs in Massachusetts Superior Court. A group of Boston merchants opposed the writs. James Otis, a prominent local attorney, represented the merchants in court, arguing that the writs were “the worst instance of arbitrary power, the most destructive of English liberty, that was every found in an English law book.” Otis asserted that new writs of assistance would “totally annihilate” the “freedom of one’s house.” The writs, Otis said, placed “the liberty of every man in the hands of every petty officer.”

John Adams, then 26 and recently admitted to the Massachusetts bar, was among those in the courtroom watching Otis’ performance. Adams later wrote that Otis’ argument against the writs “breathed into this nation the breath of life.”

Adams further credited Otis’ oratory with lighting the spark that led to the fire of revolution: “Then and there was the first scene of opposition to the arbitrary claims of Great Britain,” Adams wrote. “Then and there the child Independence was born.

[Adams also wrote of the crowd's reaction to Otis speech: “Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistants,” Adams wrote.]

In 15 years, namely in 1776, he grew to manhood, and declared himself free.”The U.S. Supreme Court in 1886 said the Paxton Case was “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country.”

Otis and the merchants lost. The court granted the new writs. But the larger cause of resistance to the Crown’s power had only grown. The Crown continued issuing writs up to the eve of the Revolutionary War, and the writs continued to stoke the colonists’ anger.

THE WILKES CASE

Two years after Otis’s impassioned argument came the case of John Wilkes, an English newspaper publisher whose fight against a general warrant issued by the King made him a hero in both England and the American colonies. Though the entire Wilkes affair played out in England, the colonial press extensively covered it, and for most colonists, John Wilkes became a household name.

Wilkes had criticized the King and other high officials in his newspaper, The North Briton. Officials issued a general warrant commanding authorities “to make strict and diligent search” for the authors, printers and publishers of the offending publication. In the process of their search, officials, broke down at least 20 doors and scores of trunks, and broke hundreds of locks. They dumped thousands of books, charts and manuscripts on the floor. In the end, a single warrant had allowed, in thirty hours’ time, the search of at least five houses and the arrest of 49 people, nearly all of whom were innocent.

The press in England and the American colonies made the case a cause celebre, and the British courts ultimately condemned the general warrant, declaring it “totally subversive of the liberty of the [warrant’s] subject.”

***

THE FOURTH AMENDMENT

It is “familiar history,” the U.S. Supreme Court noted in Payton v. New York, that “indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment.”

***

In 1967, the U.S. Supreme Court in Katz v. United States affirmed that the Fourth Amendment’s protection against searches and seizures extends to telephone conversations captured on wiretaps. In recognizing that the principle that the Fourth Amendment prohibits indiscriminate searches regardless of the technology involved, the Court made it plain that advanced technology doesn’t clear the government of the duty to establish probable cause, and to receive a warrant, before rummaging through the private lives of Americans.

Over the past few years our government has argued that the modern exigencies of national security have changed the rules of the game and that the niceties of judicial process simply no longer apply. Madison likely would have rejected this argument, but he wouldn’t have been surprised by it. “Perhaps it is a universal truth,” Madison wrote in a 1798 letter to Thomas Jefferson, “that loss of liberty at home is to be charged against provisions against danger, real or pretended, from abroad.”

It’s clear as day that the NSA’s bulk collection orders, like the one Edward Snowden disclosed from Verizon, violate the principles James Otis laid out in his famous attack against the writs of assistance. These orders are not directed at any one of us, but instead sweep up records about all of our communications, violating both the letter and the spirit of the Fourth Amendment, which clearly states that the government cannot rummage through our personal effects absent specific, probable cause and a sworn affidavit.

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If more people understood the accurate history leading up to the Revolution of the Colonies they might become more concerned about the egregious usurpation of their liberties by the current Govt.

More people are interested in history it seems than are interested in the machinations and crimes of the Fed Res. with collusion with Govt. outside a few constitutional lawyers (excluding the present WH tenant) liberty cranks (Tea Party) and readers of 'fringe' blogs like ZH.

No small wonder. MSM tells them it's a tempest in a teacup and they respond accordingly. It's what they have been trained since childhood to do. Most go to work, cash their check, enjoy their weekend and don't give a thought about Wall St. crime, NSA spying and armored police vehicles because they don't see them and think these things don't and won't affect them. Beside this, the prevalent attitude of those who have a vague sense of unease is "They're all crooks, but what are you going to do?"

Personally, I can say it's a daunting and frustrating task trying to pry minds open to the danger we face by creeping totalitarianism by the very people we put in Washington to represent us. Only a very few do take that charge seriously and it seems as if it cools in time.

Ron Paul was a great pry tool for making people open their eyes. "Just read what he writes and see if you agree. See if he is a nutcase or a true patriot concerned about the direction this country is taking." Sadly, as a retiring congressman, he seems in most minds not to be relevant anymore. I try to change minds on that because he speaks with authority and, like it or not, most people will accept statements from authority much easier than they will from average Joes at the barbershop or hardware store.

Nothing will change until a critical mass or tipping point is reached or a crisis occurs that changes everything all at once. If the latter occurs first it may be hard to focus the anger where it rightly belongs and it may dissipate in general mayhem which will serve the PTB and the armored cars will roll to "preserve law and order".

The Snowden publicity about the NSA data sweeps has raised more than a few goosebumps with people I talk with and people are starting to understand that things are not quite what they once thought about Govt. The happyface they saw has sharp teeth.

Keep plugging away GW. You may feel like you're preaching to the choir, but ZH gets new readers everyday and is becoming a wide audience vehicle for information not found in MSM. Real news that matters.

And I'll go back to being the neighborhood paranoid crazy guy who only a few people will admit that he's really not that crazy after all.

politics became subservient to finance and there you
have the irony and riddle solved as to why the federal
"government" of the united states and all it's appurtenances
behave so egregiously toward their subjects, I mean
nearly free fractional parts of a "persons".
and yes, once again, it is the debt "money" system.

The spying by the NSA is not confined to USA. NSA was collecting 97 billion pieces of intelligence a month from the world with only 3 billion pieces from these United States. This illegal and pervasive spying is a crime against humanity. If your neighbor was caught illegally spying on you, you could sue him for millions. Yet, the NSA gets away with violating the rights of billions of citizens of this world.

Where is the Nobel prize winning leader of the Free World? Has he an explanation for this trashing of the privacy of every citizen of this world? Will he ever proffer an apology and a promise to desist in the future - no, he is too busy exhorting young Africans to follow the example of Nelson Mandela.

The US claims that Chinese hacking of US sites nets Beijing $200 to $300 billion a year. So how much does the NSA hacking benefit the US? It could be in the trillions a year. How much dirt has NSA collected on foreign political and business leaders? How much of that information was being used?

The current affront to liberty and privacy is orders of magnitude higher and directed against every citizen of this world.

Correct. A point often missed. It would be much easier to rally a homogenous culture against a foreign occupying force. In this case, the result will be similar to the collapse of the soviet union. Some states will leave the union, mob rule for a while etc.

The current system requires wealth to maintain operations. As financial reality causes the system to become more and more dysfunctional competing entities will cause it to fracture. Supply chains will break and a spontaneous worldwide uprising both militarily and socially against the banking families and royal bloodlines around the world will become the scapegoat of all as they hold title to the wealth that is sought for redistribution.

So ya it is going to be a ride but what is taking place can end in a much better system than what we have today. Although it may just end. But no big deal we live with that fact everyday.

Plenty of people say "but I have nothing to hide, have done nothing wrong" which is all well and good until at some point down the road you find yourself on the wrong side of the law when some govt official changes their mind.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

Ancestors from both sides of my family fought on both sides of the Revolution, losers lost their farms and were expelled to Canada.They're all revolving in their graves. I feel ashamed that the country is so corrupt, that common folks have so little grit, and that by voting I helped the worst happen.

A long time ago, long before these NSA revelations, I read a long column about the many, many ways that the current levels of government in the US are worse than King George. Wish I could find it now. And the "Taxation without representation" complaint is even more valid today than it was then, unless you're a deep pocket special interest group that is.

Taxation without representation has arrived when the country can vote for a Democrat ("change you can believe in") and get a seamless continuation of a previous Republican administration. Votes become meaningless when nothing else changes when votes change.